Plaintiff: Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually

Defendant: Bob’s Canoe Rental, Inc.

Plaintiff Claims: negligent in permitting them to rent the canoe and launch so close in time to low tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.

Defendant Defenses: Assumption of the Risk and Release

Holding: Defendant

Year: 2014

The facts are pretty simple, even if expanded by the plaintiffs. The plaintiff wanted to rent a canoe on the Nissequogue River in Suffolk, New York. The Nissequogue River is affected by tides. At low tide, the river disappears and the ocean rushes in. The plaintiff/deceased/husband had canoed the river several times before. The plaintiff/husband and wife contacted the defendant the day before and arrived the day of the incident in the morning. However, the defendant was not at the put in, but located at the takeout. The plaintiff’s drove to the take out where they left their car and were taken back to the put in by the defendant where they started canoeing.

Prior to starting the trip each plaintiff signed a release, and the wife signed a rental agreement for the canoe.

A canoe livery if you are not familiar with one is really a rental operation like a car rental operation where you rent a car and go anywhere you want. A canoe livery you rent the canoe and paddle down a specific section of a specific river. At the end of the trip, the livery picks you up and takes you back to your car. Some liveries start by taking you upriver where you paddle down to your car.

Generally, courts look at canoe liveries as outfitters, not as rental shops. Consequently, liveries are held to a slightly higher degree of care for their guests because of their control over the boat, the river and transportation.

The time prior to putting in, the husband questioned the employee of the defendant about whether they had enough time to canoe the river before the low tide. The employee confirmed they did.

From the put in to the take out is a distance of five miles. Witnesses and the defendant testified it could easily be canoed in 2.5 hours.

After 4 hours of canoeing, the plaintiffs on the day in question had made it 2.5 miles. The tide went out leaving them stranded. According to the wife, the pair started drinking the vodka and wine they had with them to stay warm.

Eventually, they were found and treated for hyperthermia.

The plaintiff sued for basically not stopping them from renting the canoe. The court also looked at their complaint and defined one of their allegations as a negligent misrepresentation claim.

At the time of the trial, the husband had died; however, his death was not part of this case or caused by the facts in this case.

Analysis: making sense of the law based on these facts.

The court looked at the degree of care the defendant owed to the plaintiff and found the plaintiff was voluntarily participating in a sporting or recreational activity. As such, the participants “consent to the commonly appreciated risks that are inherent in and arise out of, the nature of the sport generally and flow from participation therein.” Consequently the participants consent to injury caused by events which are “known, apparent, or reasonably foreseeable risks of the participation.”

If the plaintiff fully comprehends the risks, then the plaintiff consents to them. Stated another way “the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks…”

The court found the defendant husband was an experience canoeist and understood the tides, and the risks presented by both. Therefore, the plaintiff’s assumed the risk of injury.

The court then looked at the releases.

It must appear absolutely clear that the agreement extends to negligence or other fault of the party. “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear”

Under New York law once the defendant has presented the release, and it has passed the test to exclude negligence the plaintiff must produce evidence, admissible at trial, “sufficient to require a trial of the material issues of fact.”

Here the plaintiff had not submitted any evidence other than the testimony of the plaintiff’s. More importantly the court wanted to know why it took four hours to go half way on the trip.

The court then looked at the remaining allegations and determined those sounded like a claim of negligent misrepresentation. To prevail on a negligent misrepresentation claim the plaintiff must prove “a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided”

Here the court found that no evidence had been submitted by the plaintiff to prove the information supplied by the defendant was false.

The plaintiff’s complaint was dismissed.

So Now What?

This case was short but very interesting. The plaintiff did not attack the releases. The court even commented about the fact the plaintiff did not try to have the releases thrown out or voided. Additionally, the plaintiff simply tried to say that the defendant was liable because they got stuck. This is a belief that many plaintiffs have now days. I suffered an injury; therefore, you must be liable.

To win a negligence claim you must prove negligence. Here the plaintiff had not argued there was a breach of the duty owed to them.

There are several abnormally that make this interesting. The first is the standard of care applied to this case is significantly lower than normally that a canoe livery must meet. However, that same standard of care was only at issue on a small part of the claim so the claim would have failed anyway.

The second is the experience of the husband as a canoeist was held to prevent the plaintiff wife from her claims also. Normally, assumption of the risk must be known and understood by each injured plaintiff. Here, because there were two people in the canoe both working together, the court applied the experience and knowledge of one party in the canoe to the other party in the canoe.

The court did not rely on the release or any other document to make this decision as to the wife assuming the risk that caused their injuries.

Granted, the defendants should have clearly won this case. Whenever in a deposition, the plaintiff argues, they did not start drinking until after they had run out of water to canoe, to stay warm, you should be a little suspect.

The case states they two were hypothermic when they were found. I can only guess the med bills from the rescue and rewarming. However there was nothing in the case that indicated they were even taken to the hospital.

Appellate courts very rarely mention the amount of money being sought. This one did not either. Damages also change based on state law. So you can get a lot more money in some states for pain and suffering with minimal or no medical costs then in others. In Puerto Rico you can sue for pain and suffering with no medical damages and in Colorado you cannot get pain and suffering unless you have medical bills.

Sometimes lawyers take on cases thinking they will get a quick $10-$15K on a settlement. Sometimes you find a lawyer who does not know the law. Don’t ask me, I thought it was stupid also. LOL

35 Years of Outdoor Retailer

James Moss JD, Author

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

The outdoor industry’s favorite lawyer, Moss has been known to don a toga at a show party and he learns from what he observes on the show floor. “Attending a trade show year after year allows you to watch the industry evolve, grow, change and sometimes shrink,” he says. “It shows you new sports, new activities, and new ways to get sued. Outdoor Retailer is both a barometer and an education in the outdoor recreation industry.”

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